By Kyle Brady
Known for clever cheers and creative school spirit, high school cheerleaders rarely garner national attention, spark protests, or tap into the highly polarized political fabric of our country. One North Carolina squad, however, managed to accomplish this incredible feat with one photo. What was so scandalous and controversial about this photo? The North Stanly County High School cheer team was pictured posing with a flag that read: “Trump 2020 Make America Great Again.”[1]
Putting aside the modern reality that student participation in the political process can cause such a reaction, the school district faced a PR nightmare after the photo was posted online forcing it to toe the line between respecting student speech and enforcing school policy.[2] The day after the photo surfaced on Facebook, the school released a statement claiming that the photo “was not . . . planned or endorsed by the school or its staff” and that “[t]he picture was taken prior to the event starting.”[3] Nevertheless, the North Carolina High School Athletic Association (NCHSAA) placed the cheer team on probation for violating a district policy prohibiting the distribution of political campaign materials at school events.[4] The probation prompted a group of citizens to organize a protest, and elicited a response from U.S. Congressman Rich Hudson (R-NC) who wrote the NCHSAA to voice his discontent over students being punished for “exercising their First Amendment right to free speech.”[5] North Stanly High School even cancelled its next home game due to unspecified student safety concerns.[6]
In a time where the spark of our polarized politics so often meets the jet fuel of social media addiction, a review of First Amendment jurisprudence as it applies to public schools may be in order. First Amendment issues in schools often emerge in times of increased attention to hyper-polarized issues,[7] so naturally this issue has reemerged in the age of Trump. Unsurprisingly, there have been other controversial topics in our Nation’s history that have led to student protests in our schools. In fact, students’ First Amendment rights have been at issue for several decades.
Tinker v. Des Moines Indep. Cmty. Sch. Dist. (1969)
In December of 1965, three students decided to wear black armbands to school to protest U.S. involvement in the Vietnam War.[8] A few days before the students participated in the demonstration, administrators discovered their plan and adopted a policy to suspend any student who refused to remove their armband after being asked.[9] The students wore the armbands anyways, did not remove them when asked, and were suspended from school.[10] Eventually, the students sued. The result? Justice Fortas and the Supreme Court authored a landmark opinion addressing the question of student symbolic speech.[11]
The Court held that “where there is no finding and no showing that engaging in the forbidden conduct would ‘materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,’ the prohibition cannot be sustained.”[12] It reasoned that “in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.”[13] In subsequent cases, lower courts have used Tinker’s language to bar actual or potentially disruptive student speech from the classroom.[14] Such an analysis seems simple enough, but as time progressed, the Supreme Court added several exceptions to the Tinker doctrine to give schools more control over speech.[15]
Bethel Sch. Dist. No. 403 v. Fraser (1986)
The Supreme Court’s first deviation from the Tinker doctrine came in Fraser. In Fraser, a student was suspended after delivering a sexually charged speech supporting a candidate for student government at a school gathering.[16] The student sued the school under the First Amendment. The Court limited its ruling in Tinker by allowing schools to regulate “offensively lewd and indecent speech.”[17] It held that “[t]he schools, as instruments of the state, may determine that the essential lessons of civil, mature conduct cannot be conveyed in a school that tolerates lewd, indecent, or offensive speech and conduct. . . .” Lower courts have struggled to apply this rule consistently.[18] Some courts find its language to apply narrowly to sexually charged speech, while others take the opposite approach and apply the rule broadly.
However the rule is applied, display of a flag supporting the President reelection is not “offensively lewd and indecent speech” because the Fraser court recognized a “marked distinction between the political ‘message’ of the armbands in Tinker and the sexual content of [Fraser’s] speech.”[19] This brings us to the next exception the Supreme Court adopted.
Hazelwood Sch. Dist. v. Kuhlmeier (1988)
In Hazelwood, student members of a student-run newspaper brought suit after the school deleted two pages exploring student struggles with the issues of pregnancy and divorce from the paper.[20] The school disapproved of the articles because they would potentially allow affected students to be identified and the school thought the topics were inappropriate for some of the younger students.[21] The Court differentiated its decision from Tinker by exploring “whether the First Amendment requires a school affirmatively to promote particular student speech” rather than “whether the First Amendment requires a school to tolerate particular student speech.”[22] The Court found that schools are entitled to greater control over “school-sponsored publications, theatrical productions, and other expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school.”[23] Additionally, the Court ruled that “[a] school must also retain the authority to refuse . . . to associate the school with any position other than neutrality on matters of political controversy.”[24] The Court reasoned that such control is necessary so that schools may fulfill their duties to the students.[25] The Court employed similar reasoning to create the next, and final, exception to the Tinker doctrine 19 years later.
Morse v. Frederick (2007)
In Morse, a school principal permitted students to watch the 2002 Winter Olympic Torch Relay when it passed by a road in front of the high school.[26] During the event, a student was suspended for unfurling a large banner that read “BONG HiTS 4 JESUS.”[27] The Court held that a school may restrict student speech at a school event that is reasonably viewed as promoting illegal drug use.[28] It reasoned that because of the seriousness of the issue of drug abuse, the government has a compelling interest to regulate its promotion within schools.[29] While such a bright line rule is refreshing in First Amendment jurisprudence, the Court did little to clear up the ambiguities and confusion left in the wake of its former opinions. In fact, the Court refused to extend Fraser “too far” and claimed that “[t]he concern here is not that [the student]’s speech was offensive, but that it was reasonably viewed as promoting illegal drug use.”[30]
- Considering these cases, how would the current situation play out?
Since the cheerleaders were not promoting the use of illegal drugs and a flag supporting the President of the United States is not “offensively lewd and indecent speech,” Morse and Fraser will not come into play. That leaves Tinker, which broadly protects political speech as long as it is not disruptive, and Hazelwood, which expressly limits speech which can reasonably be interpreted as being sponsored by the school.
Clearly, Hazelwood lends the
most support for NCHSAA’s decision to place the North Stanly High School cheer
team on probation. Presumably recognizing this, the school district even
incorporated the Hazelwood analysis into its public statements.[31]
If the circumstances were different and the cheerleaders were not wearing school
uniforms as representatives of the school, Tinker would most likely
apply to protect their First Amendment rights to political expression. However,
since students, parents, and members of the public could certainly “reasonably
perceive” that the expression “bears the imprimatur of the school,” and since
the photo was taken at a school event, it would seem that the NCHSAA operated
within its authority to put the students on probation.[32] Currently,
there is no indication that this incident will result in litigation. For now,
it acts as a small reminder of a decades-old debate that will not be resolved
any time soon.
[1] Caitlin O’Kane, Cheerleaders Held Up a “Trump 2020” Sign During a Football Game. They Were Put on “Probation” for the Rest of the Season, CBS News (Sept. 17, 2019), https://www.cbsnews.com/news/cheerleaders-put-on-probation-for-trump-2020-sign-during-north-stanly-high-school-football-game-north-carolina/.
[2] See Marc Nathanson, North Carolina School Officials Cancel Football Game After Cheerleaders’ Trump 2020 Banner, ABC News (Sept. 21, 2019), https://abcnews.go.com/US/north-carolina-school-officials-cancel-football-game-cheerleaders/story?id=65765969.
[3] Kristy Kepley-Steward, North Carolina Cheerleading Squad on Probation for ‘Political Message’ at Game, WLOS (Sept. 16, 2019), https://wlos.com/news/local/north-carolina-cheerleading-squad-on-probation-for-political-message-at-game.
[4] O’Kane, supra note 1.
[5] Andrea Blanford (@AndreaABC11), Twitter, (Sept. 17, 2019, 1:05 PM), https://twitter.com/AndreaABC11/status/1174006406753783808.
[6] Nathanson, supra note 2.
[7] See generally Morse v. Frederick, 551 U.S. 393 (2007); Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988); Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986) Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969).
[8] Tinker, 393 U.S. at 504.
[9] Id.
[10] Id.
[11] Ronna G. Schneider, General Restrictions on Freedom of Speech in Schools, 1 Educ. L. § 2:3 (2018).
[12] Tinker, 393 U.S. at 509.
[13] Id. at 508.
[14] See Matthew M. Pagett, A Tinker’s Damn: Reflections on Student Speech, 2 Wake Forest J.L. & Pol’y 1, 19 (2012).
[15] See id. at 4.
[16] Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 677–78 (1986).
[17] Id. at 685.
[18] Pagett, supra note 14, at 10.
[19] Fraser, 478 U.S. at 680.
[20] Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 263 (1988).
[21] Id.
[22] Id. at 270–71 (emphasis added).
[23] Id. at 273.
[24] Id. at 271.
[25] Id.
[26] Morse v. Frederick, 551 U.S. 393, 397 (2007).
[27] Id. at 397–98.
[28] Id. at 403.
[29] Id. at 407.
[30] Id. at 409.
[31] See O’Kane, supra note 1.
[32] Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988).